Posts Tagged ‘health care law’

In a decision that no one expected, the Supreme Court has upheld Obama’s health care law, but with a twist.

It was clear from the questioning during the oral arguments that the Court didn’t like the individual mandate – at least in the context of the Commerce Clause.

So, Chief Justice Roberts saved the Commerce Clause from Congress, while calling the mandate a tax. This is not welcome news to President Obama and the Democrats running for re-election. With the mandate considered a tax, it makes the bill one of the largest tax increases in history. This is going to make for an interesting fall.

I’m sure many will criticize Chief Justice Roberts, but he has managed to keep the court above the politics of this issue, and that’s probably smart.

Republicans should be plenty comfortable knowing that this health care law will be the focal point between now and November. It could be 2010 all over again.

President Obama is an arrogant elitist who believes – really believes – that he is a force of nature to which everyone must respond. Take his remarks regarding the Supreme Court’s oral arguments of the health care law.

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Seriously? This from a man who was a constitutional law professor? There have been hundreds, if not thousands, of laws passed by Congress and state legislatures that have been overturned by the Supreme Court and even lower courts. This is a doctrine of legislative review established more than 200 years ago in a case called Marbury v. Madison.

Obama’s assertion that the law “was passed by a strong majority” is revisionist history. It ultimately passed the U.S. House on a 219-212 vote – in which all Republicans and 39 Democrats voted no.

Let’s review how it got to that point, because it’s a story that belies this notion that it was “passed by a strong majority of a democratically elected Congress.”

The first real floor action on health care reform happened in November of 2009 when the Democrats in the House passed their version that included a “public option” which was essentially a full government takeover of health care. That vote was 220-215 with one Republican (Joseph Cao of New Orleans, who won the seat of Democrat William Jefferson after Jefferson was caught stuffing his freezer with cash from bribes) voting yes and 39 Democrats voting no.

Because at least eight Senate Democrats were on record opposing a public option, the Senate drafted it’s own bill and used the Christmas holiday as the leverage point to get it passed.

It passed the Senate with the 60 votes (the minimum required to end debate on legislation) on Christmas Eve 2009 after some rather outrageous giveaways were promised to Sen. Ben Nelson of Nebraska – “Cornhusker Kickback” – and Sen. Mary Landrieu of Louisiana.

Then a funny thing happened on the way to the Capitol – so to speak. Outrage at how the Senate had managed the passage of the health care bill manifested itself in the special election in Massachusetts to fill the Senate seat left vacant as a result of the death of Sen. Ted Kennedy. In what must be one of the most shocking political upsets of all time, Republican Scott Brown defeated Democrat Martha Coakley, thus becoming “41” – that is, the 41st Republican in the Senate, and breaking the 60-vote supermajority of the Democrats.

At that point, passage of Obama’s health care bill looked doomed. But then-Speaker Nancy Pelosi decided that they would force the House to vote on the Senate-passed bill by a legislative trick called “reconciliation.”

I won’t bore you with the reconciliation process, but suffice it to say, the House took what was essentially a draft bill (remember, the Senate pushed through their bill on Christmas Eve with deals being cut hours before, and what officially passed the Senate was language that included handwritten edits, notations and references) and passed it into law, because under reconciliation no language could be changed.

This is why Nancy Pelosi was being honest when she said, “We have to pass the bill so that we can find out what is in it.” The Senate version (which was never intended to become the final law) left huge swaths of decisions to the Secretary of Health and Human Services because they hadn’t come to agreement on most of the implementation points.

Most damaging in the long run to Obama’s law was that the Senate version did not include a “severability clause” which is routine in bigger pieces of legislation. Severability is normally included so that if some portion of a bill is found to be unconstitutional, it doesn’t take the entire bill down.

The severability issue brings us back to Obama’s claim that it would be unprecedented for the Supreme Court to overturn a law. If it had never been done, why would Congress ever put a severability clause into legislation?

I am astounded at the blatant disregard for the truth that the President of the United States employs. Does he really think that “warning” the Supreme Court is smart, let alone appropriate? For him to equate overturning this horrific law to “judicial activism” is to turn the world upside down. Striking down a law because it violates the constitution is not legislating from the bench.

Obviously, Obama is very worried about what might happen to his signature accomplishment. But his outrage is misguided and he isn’t handling this in a very Presidential way.